93 Decision Citation: BVA 93-08844
Y93
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
DOCKET NO. 92-03 963 ) DATE
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THE ISSUE
Whether new and material evidence has been submitted to reopen a
claim for service connection for a low back disorder.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of the
United States
WITNESSES AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
P. A. Dowdell, Associate Counsel
INTRODUCTION
The veteran served on active duty from August 1944 to December
1945. He also performed periodic active duty for training with a
National Guard unit from the late 1940's through the mid-1980's.
He is shown to have had inactive duty training from March 23, 1985
to March 24, 1985.
In October 1987, the Board denied service connection for a low
back disorder. In September 1990, the Board again denied service
connection for a low back disorder.
This matter came before the Board on appeal from a November 1990
rating decision from the San Juan, Puerto Rico, Regional Office
(hereinafter RO). A notice of disagreement was received on
December 19, 1990. A statement of the case was issued on January
23, 1991. A substantive appeal was received on February 6, 1991.
A hearing was held at the RO on July 2, 1991. A supplemental
statement of the case was issued on January 24, 1992. The case
was received at the Board on March 31, 1992, and docketed on April
3, 1992.
The veteran is represented by the Veterans of Foreign Wars of the
United States. The case was charged to that service organization
on April 3, 1992, and it submitted additional written argument on
August 13, 1992.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that his back disorder was aggravated by an
accident he suffered during the weekend drill in March 1985. The
veteran and his representative argue that the veteran's current
back disability is related to injuries he sustained during March
1985 while serving with a National Guard unit. It is asserted
that this was a reinjury of the veteran's back, which was first
injured in 1976 while the veteran was a civilian employee for the
National Guard. It is also contended that the veteran has
submitted new and material evidence to reopen his claim for
service connection for a back disorder.
DECISION OF THE BOARD
In accordance with the provisions of 38 U.S.C.A. § 7104 (West
1991), following review and consideration of all evidence and
material of record in the veteran's claims file, and for the
following reasons and bases, it is the decision of the Board that
new and material evidence to reopen the claim for service
connection for a low back disorder has not been received.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable disposition
of the veteran's appeal has been obtained by the agency of
original jurisdiction.
2. In October 1987, and September 1990, the Board denied
entitlement to service connection for a low back disorder.
3. The evidence submitted since the 1990 Board decision is
essentially cumulative of evidence previously of record.
CONCLUSIONS OF LAW
The 1990 Board decision which denied service connection for a low
back disorder is final. New and material evidence sufficient to
reopen a claim has not been received. 38 U.S.C.A. §§ 5107, 5108,
7104 (West 1991); 38 C.F.R. §§ 3.156, 20.1100, 20.1105 (1992).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The Board notes that the veteran's petition to reopen is "well
grounded" within the meaning of 38 U.S.C.A. § 5107 (West 1991).
That is, the Board finds that he has presented a claim which is
plausible. We are also satisfied that all relevant facts have
been properly developed. No further assistance to the veteran is
required to comply with the duty to assist mandated by 38 U.S.C.A.
§ 5107 (West 1991).
The veteran's appeal involves a request that the Board reopen a
claim for entitlement to service connection for a low back
disorder. Service connection for a back disorder was denied by
Board decision of 1990, based on findings that in October 1987,
the Board of Veterans Appeals denied entitlement to service
connection for a chronic low back disorder, and the evidence
received subsequent to that decision failed to indicate that the
veteran's preexisting low back disorder was incurred during active
service, during active duty for training, or was aggravated during
a period of inactive duty training.
At the time of the 1987 Board of Veterans Appeals decision, the
evidence included the service medical records, a private
physician's report dated in June 1985, a February 1986 VA
examination, the Medical Evaluation Board Proceeding report, and
the veteran's sworn testimony dated in May 1987. The Board, at
that time, noted that the veteran had injured his back during
active duty for training in March l985. It was noted that the
underlying low back disability demonstrated on workup in l985
following the above injury is clearly shown to have preexisted the
period of training duty in March 1985, based on the nature of the
findings themselves and the history reported in the 1985 medical
reports. It was found that the veteran's low back disability
underwent no chronic increase in the nature and extent of te basic
pathology during inactive duty for training in March 1985.
The evidence of record at the time of the prior Board denial in
September 1990, pertaining to the veteran's low back condition,
included copies of medical records for treatment the veteran
received at a VA facility in early 1988, which indicated he fell
at home two months previously resulting in exacerbation of pain
with radiation into the right lower extremity. A February 1988 x-
ray study of the lumbosacral spine showed moderate lumbar
spondylosis with narrowing of the lumbosacral joint. In March
1988, the assessment was subacute post-traumatic exacerbation of
chronic low back pain with a lumbar herniated nucleus pulposus.
The veteran's sworn testimony in April 1989 reiterated his
contentions.
Under governing law and regulations, the prior decisions of the
Board are final. 38 U.S.C.A. § 7104 (West 1991). However, if new
and material evidence has been submitted, the claim may be
reopened. 38 U.S.C.A. §§ 5108, 7104 (West 1991); 38 C.F.R. §3.156
(1992).
In Manio v. Derwinski, 1 Vet.App. 140 (1991), the United States
Court of Veterans Appeals held that, when a veteran seeks to
reopen a claim based upon new evidence, the Board of Veterans'
Appeals must first determine whether evidence is "new and
material"; if the Board determines that the claimant has produced
new and material evidence, the case is reopened and the Board must
evaluate the merits of the veteran's claim in light of all
evidence, both new and old. Because service connection for a low
back disorder was previously denied by the Board in 1990, and the
decision is final, we must consider whether new and material
evidence has been presented to reopen the claim. Id.;
Colvin v. Derwinski, 1 Vet.App. 171 (1991).
"New" evidence is not cumulative of that which is already a part
of the record. Id. "Material" evidence is relevant and probative
as to the issue presented. Id. Evidence must be both new and
material to reopen a claim. 38 U.S.C.A. § 5108. To be new and
material evidence there must be a reasonable possibility that the
new evidence, when viewed in the context of all the evidence, both
new and old, would change the outcome. Id.
Additional evidence pertaining to the back disorder added to the
record since the 1990 Board decision, includes the testimony the
veteran gave at a formal hearing on appeal, an Army National Guard
report dated in May 1985, a private physician's statement dated in
June 1991, and reports of a CT scan and x-rays dated in March
1991.
The veteran testified about his military service experience and
the accident he suffered in 1975. He also made reference to a
second accident he had suffered while in a weekend drill on March
23, 1985. He testified being hospitalized 36 days at Navy
Roosevelt Roads. He also testified being retired from the
National Guard under treatment for his back condition and being
limited in his activities due to back and leg pain.
The Army National Guard document dated in May 1985, noted that the
disability had existed prior to service and was aggravated ("EPTS-
Aggravation").
A private physician's statement dated in June 1991 reported that
the veteran had been treated for a condition diagnosed
degenerative disk disease with old herniated disk and gave a
history of accidents suffered while working for the National Guard
and also during weekend drill as per veteran's history.
X-rays and CT scan of the lumbar spine dated in March 1991 were
both compatible with degenerative joint disease of the spine with
narrowing of the disc space at the L5-S1 space.
In view of the evidence of record, we conclude that the additional
evidence submitted since the last September 1990 Board decision is
not new and material evidence and does not add to the record any
evidence that, viewed in the context of all the evidence, would
change the outcome. At the time of the September 1990 Board
decision, the evidence demonstrated that the veteran's back
disorder was not any more disabling at the end of his service than
it was on entrance upon service. The evidence of record,
including the veteran's sworn testimony as well as the medical
evidence fails to establish a new factual basis to reopen the
claim for service connection for a back disorder. The evidence is
considered to be repetitious and cumulative in nature. Current
treatment for the veteran's back disorder as well as the veteran's
statement of the history of his back disorder is not considered to
be new and material evidence to reopen his claim. The additional
evidence submitted does not serve to show that the veteran's back
disorder was aggravated by his military service and merely
reiterated facts or allegations which were previously of record.
When the Army National Guard document is read in conjunction with
the entire record including the formal Physical Evaluation Board
Proceeding, it must be concluded that the document is not new and
material. In essence, no new pertinent facts were added to the
record. Therefore, the additional evidence received since the
1990 Board denial of service connection for a low back disorder is
not new and material evidence sufficient to reopen the claim. 38
U.S.C.A. § 5107.
ORDER
The claim for service connection for a low back disorder is not
reopened and the appeal is denied.
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
*
(Member temporarily absent) PAUL M. SELFON, M.D.
LAWRENCE M. SULLIVAN
*38 U.S.C.A. § 7102(a)(2)(A) (West 1991) permits a Board of Veterans'
Appeals Section, upon direction of the Chairman of the Board, to
proceed with the transaction of business without awaiting assignment
of an additional member to the Section when the Section is composed
of fewer than three Members due to absence of a Member, vacancy on
the Board or inability of the Member assigned to the Section to serve
on the panel. The Chairman has directed that the Section proceed
with the transaction of business, including the issuance of
decisions, without awaiting the assignment of a third Member.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991),
a decision of the Board of Veterans' Appeals granting less than
the complete benefit, or benefits, sought on
appeal is appealable to the United States Court of Veterans
Appeals within 120 days from the date of mailing of notice of the
decision, provided that a Notice of Disagreement concerning an
issue which was before the Board was filed with the agency of
original jurisdiction on or after November 18, 1988. Veterans'
Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date
which appears on the face of this decision constitutes the date of
mailing and the copy of this decision which you have received is
your notice of the action taken on your appeal by the Board of
Veterans' Appeals.